June 30, 2010

Kagan Agrees in Part With Umpire Analogy

The comparison between judging and baseball umpiring, popularized by Chief Justice John Roberts Jr. during his 2005 confirmation hearing, is popping up again.

Sen. Amy Klobuchar (D-Minn.) brought up the analogy while questioning Supreme Court nominee Elena Kagan at her confirmation hearing. Kagan, during a second day answering questions, said she sees some limited value in the comparison.

“You expect that the judge, as you expect the umpire, not to have any skin in the game,” Kagan said. “There’s got to be neutrality. There’s got to be fairness for all parties.”

She added that a judge, like an umpire, also must maintain a limited role. The public and their elected representatives, not appointed judges, should be the ones to make “fundamental decisions” about government policy, she said.

But, Kagan continued, the judge-umpire analogy could leave some with the wrong impression about the judicial system.

“The metaphor might suggest to some people that law is a kind of automatic enterprise,” she said. “I do think that that’s not right, and I think that’s especially not right at the Supreme Court level, where the hardest cases go…. In some sense, law does require a kind of judgment, a kind of wisdom.”